David Zayatz was classified as a sex offender in Colorado due to an indecent exposure charge at age 15, but Colorado officials allowed him to live with his family after he took a psychosexual evaluation.

Colorado’s sex offenders have long maintained the state treats them as pariahs, closely monitoring where they live, what they look at, who they talk to and what they discuss. One claimed in federal court filings that he was warned against keeping a crucifix because it displayed partial nudity. Another, convicted of groping a woman, said he had to write down his thoughts every time he saw a school bus.

The idea was to protect children, but the resulting system that cut off offenders from their own families has now been struck down in federal court. That leaves Colorado to create a new sex-offender treatment and management system that defense lawyers say is long overdue but prosecutors worry will put children at risk.

Supporters of the changes point to lives disrupted by what they call an outdated and overreaching system. David Zayatz, 39, said Colorado authorities threatened to separate him from his family after he was arrested in Florida on a parole violation in 2015. An indecent-exposure charge when he was 15 years old — for “mooning some people,” Zayatz said, although an official account was not available because he was a juvenile — put him on Colorado’s radar as a sex offender.

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Police in Florida had stopped Zayatz for a traffic offense and discovered he absconded from parole in Colorado 16 years earlier after serving prison time for burglary. When Zayatz was returned to Colorado, he learned he was classified as an “unadjudicated sex offender” because of the old exposure charge. Based on a psychosexual evaluation, authorities determined Zayatz could continue living with his common-law wife and daughter after he reparoled back to Florida.

“I mooned someone when I was 15. How many kids do stupid stuff like that every day? And here I am turning 40 years old and still dealing with it,” Zayatz said.

Critics argue that Colorado has for too long treated a broad cross section of parolees and probationers, whose offenses range from statutory rape to armed sexual assault or pedophilia, as posing the same risks to children when in reality they differ greatly. Those separated from their children include a 35-year-old man who sent sexually explicit e-mails to fellow college students and a man who as a 15-year-old had unlawful sexual contact with a 14-year-old girl.

“There has been a historical mythology that there is this one thing called a sex offender, and a lot of hysteria has been around a certain imagined stranger-profile predator,” said Laurie Kepros, director of sexual litigation for the state public defender. “The real cases are sometimes very immature people doing things that are technically in violation of statute but aren’t even necessarily abnormal behaviors.

“For example, if you have someone slow mentally, and they are engaging with someone that’s their developmental peer but that person is four years and one day younger and under the age of 15, if they have consensual sexual contact, they are committing a lifetime felony in Colorado.”

The cases typically aren’t so black and white, however, and critics worry about what can happen when dangerous offenders slip through the cracks.

Jaacob Van Winkle killed a woman he was living with and her son and daughter in Cañon City in 2014, and sexually assaulted her other daughter. He had been convicted in 2004 in Indiana of child molestation and other sex crimes involving girls as young as 5 and 7.

Authorities were not monitoring Van Winkle because he did not register as a sex offender when he moved to Colorado. But he is the kind of individual prosecutors are most worried about as the state’s sex-offender management system undergoes fundamental changes.

“What used to be very reliably in place is now ever changing and in day-to-day flux,” said Caryn Datz, chief trial deputy in the sex assault unit of the Boulder district attorney’s office. “That imposes its own challenges on any system. And we, as prosecutors, see the other anecdotes. We worry about the risk. We don’t want additional victims.”

Ruling drives changes

Driving much of the change is a December 2014 ruling from a three-judge panel for the U.S. District Court of Appeals for the Tenth Circuit, which included U.S. Supreme Court nominee Neil Gorsuch.

The panel ruled that the constitutional rights of an Oklahoma man being released from prison for possession of child pornography were violated when a judge required him to get approval from the probation department before having contact with his youngest daughter.

The judge failed to make specific findings as to why restricting contact with the daughter was warranted, the panel ruled. There was no evidence the man had “abused or sexually molested children,” and he had “had a positive relationship with four of his five children,” the panel found.

Over the past year, state parole and probation rules have changed to bring contact standards between sex offenders and their children in line with the ruling. The Sex Offender Management Board, an arm of the Colorado Department of Public Safety that writes the rules for sex-offender treatment, followed suit last month. The 25-member board last year relaxed standards to allow treatment providers, private companies that guide sex-offenders’ therapy, to treat those in contact with children.

The system used to start with the premise that offenders should be barred from seeing their children even when they had not been victimized, until offenders prove they’re safe. Probation and parole officials almost always barred contact. The new system presumes sex offenders should parent their children unless a judge or parole board find compelling evidence the children are in danger.

When the old rules were drawn up about 20 years ago, they were guided by research that warned sex offenders often have many undisclosed victims and frequently cross age and gender lines. A 2003 study in Colorado found that the average number of victims admitted by offenders increased from two to 110 after a second polygraph. Defense lawyers point out the research was conducted just on hard-core offenders, and that results were skewed by one who reported 400 assaults.

But consultants who reviewed Colorado’s sex-offender treatment program for the state in 2013 found that participants reported they felt compelled to “fabricate problems or conspire with others to fake problems to fulfill program requirements.”

Provided by David Zayatz

David Zayatz spends time with his family in Florida.

Re-offending is far more nuanced, according to a follow-up report for the state in 2014 from Central Coast Clinical and Forensic Psychology Services.The consultants reported that low-risk sex offenders have less than a 2 percent chance of being re-arrested within five years for another sex offense, a rate lower than those being released from prison with no sex-related conviction.

Central Coast said the state has overly broad restrictions on offenders seeing their children that can damage kids who aren’t in harm’s way. Colorado adhered to the idea that sex offenders cannot be cured and must be managed for life, the report stated, despite abundant research to the contrary.

Still, there is resistance to the changes.

“I understand the constitutional rights the legal system is putting forth here,” A. Mervyn Davies, a treatment provider and member of the sex-offense management board, said during a recent board meeting. “I get that. I also understand what it’s like when a kid gets molested, and we’re saying it’s OK. I think that’s equally as bad as when we prohibit contact between a parent and a child when there might not have been a problem there.

“This, as a treatment provider, goes against everything I stand by in terms of how I provide service, and I can’t support it,” he said.

Lifetime prohibition

The child contact prohibitions have been especially acute for those sentenced under Colorado’s 1988 lifetime supervision act, which covers sex offenses ranging from statutory rape to sex assault with a deadly weapon. About 2,200 of the roughly 6,600 probationers, parolees and prisoners classified as sex offenders in Colorado were sentenced under the lifetime supervision act.

Once released from prison, offenders convicted under the act must enter a community-based lifetime-supervision program, which has adhered to the view they can’t be cured and are dangerous to children, defense lawyers say.

In 1999, Eric Petersen had just turned 22 when he volunteered to drive his intoxicated roommate’s 14-year-old babysitter home. He stopped the car near her home and kissed her on the mouth twice and cupped her breast over her clothing. A judge sentenced him to 12 years of sex supervision probation after he pleaded guilty.

He was re-arrested in 2002 for moving in with a woman who had a 7-year-old son, which violated his supervision conditions. The woman was pregnant with Petersen’s daughter. He was resentenced under the lifetime supervision act to two years to life in prison. He paroled from prison in 2010 and is allowed to have several photos of his daughter but no contact. Petersen has never seen his daughter in person and is barred from talking about her.

He had hopes of seeing her under a safety plan his treatment team was developing, but that was scuttled after polygraphs showed he was being deceptive when asked whether he had already seen her or other children. He wears an ankle monitor that tracks his movements, which he says shows the polygraph results aren’t accurate.

“I have trouble taking the polygraphs,” Petersen said. “You put so much pressure on yourself, more than you would normally because there is so much to lose and so much to gain. That’s my daughter. That’s my child. It’s not only my moral obligation, but it’s my responsibility to help educate her and help mold her for the world. The negative I did in the past doesn’t negate the positive I can now do.”

State-ordered assessments show Petersen is not aroused by children, according to documents in a lawsuit he filed seeking contact with his daughter. The state has said in filings in the case that it must regulate offender visitation when community safety is at risk.

Cutting off low-risk offenders from their families can make them more likely to re-offend, Kepros said.

“The more we isolate and stigmatize people and remove them from their structures and their stability, the more we increase risk,” said Kepros, who stressed that judges still can bar offenders from their children in extreme cases, such as incest.

In Colorado, past sexual transgressions, even those never prosecuted, can haunt offenders years later if they have a new violation for a non-sex offense. State statistics show 157 prisoners and 46 parolees classified as sex offenders in Colorado never were convicted of a sex offense. They make up a minor amount of the total sex-offender population on parole and probation.

Danny Daniels Sr. was ready to reunite with his wife and five children in 2011 after spending five years in a Colorado prison for shooting a neighbor in the shoulder and leg during a dispute. But a 1991 San Diego conviction on charges of having sex with a 17-year-old girl when he was 21 meant he was classified as a sex offender when he went to prison on the Colorado conviction.

Daniels was barred upon his release and parole from having any contact with any children, including his own, who were born well after what Daniels describes as an isolated, consensual encounter with a girl he met at a party.

Arapahoe County District Court Judge John Wheeler protested, threatening to find corrections officials and the Colorado Parole Board in contempt of court. Wheeler pointed out that the statutory sex charge that Daniels didn’t contest in California wasn’t even illegal in Colorado. But the judge had no jurisdiction over the corrections department or the parole board, and Daniels’ sex offender classification remained.

Daniels became homeless. His parole was revoked for failing to comply with his mandated treatment, which required him to admit he was a sex offender. He has since completed his prison sentence and his parole, and now lives in Mississippi with his wife.

“I didn’t care about being homeless,” Daniels said. “I cared about my kids. Not being able to talk to them, it really caused a strain on our family. And when I did come back into the house, I didn’t know my kids anymore. They’d grown up.”

Exemption efforts fruitless

In the past, sex offenders had to pass an assessment or show progress in treatment before they were allowed to see their children. Parole and probation officials don’t keep track of how often offenders were allowed to have contact with their children, but many offenders say efforts to get an exception usually were fruitless.

They say they usually had to take years of polygraph exams, divulge their sexual history, express contrition and pass other hurdles before they had any hope of seeing their own children. Offenders could be required to submit to plethysmograph testing, in which sensors are attached to their penis, in an effort to find out whether they were aroused by deviant imagery and sounds. Such testing was excoriated last year by Senior U.S. District Judge John Kane as unsound science and an extreme deprivation of liberty that requires participants to submit to “mind intrusive examinations.”

When offenders are deemed to be of lower risk, that hasn’t always helped. In 2011, a treatment provider wrote in a parenting evaluation that a man convicted of possessing child pornography likely should live at home with his wife and four daughters, age 7 to 11. He had pleaded guilty to attempted sexual exploitation after 220 images of child pornography were found on his computers and hard drive. Probation officials overruled the recommendation and ordered the man, who as a child had been sexually abused by an uncle, to move out of the family home, court records show.

The Denver Post spoke to the 43-year-old Centennial man, who asked that he be identified only by his first name, Richard, to protect his family. The forced separation was so debilitating that he tried to kill himself in a “psychotic break from reality,” slashing his abdomen with a kitchen knife.

A probation officer warned him that he should take down his crucifix of Jesus because it showed semi-nudity, Richard said.

“The whole time in treatment we never addressed my pornography issues,” Richard said. “They kept saying, ‘We need to work on your anger issues. Why are you so angry at the program?’ Of course I was angry. They kept asking if I wanted to molest my girls when that horrified me, and I had no intention of ever doing that.”

After being caught for shoplifting cat litter and conducting internet searches on sites for preteen models in 2011, he agreed to a two-year prison sentence. He paroled to Mississippi, where his wife and children were allowed to visit him, he said. He has finished his parole and moved back in with his family in Centennial, and has resurrected a successful consulting business.

The prohibitions in Colorado have been so strict that, “astonishingly,” a pregnant offender would be in violation if she gave birth without approval from a treatment team, noted U.S. District Court Judge William Martinez in one ruling last year.

“They couldn’t even have photographs,” said Alison Ruttenberg, a lawyer who has filed federal lawsuits on behalf of sex offenders. “They couldn’t even have a smart cellphone of any kind. I had one client whose therapist told him, ‘Your children are dead to you. Just think of them as dead because you are never going to see them again.’ ”

How treatment providers respond to the new rules could have implications. They are private companies and can’t be forced to treat someone they don’t want to. If an offender who is having contact with his child gets kicked out of treatment, he risks getting sent to prison.

Kevin Callies, a 62-year-old Vietnam veteran convicted in 2010 of misdemeanor sexual contact, found that a discussion with a stepdaughter about her pregnancy constituted unlawful “third party contact with a child,” court records show.

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The Cañon City man, a delivery truck driver, was accused of grabbing the buttocks and breasts of an adult female grocery store worker while they unloaded his truck. She said the contact was unwanted. He contended he hugged her, and that they had hugged before.

After a jury found him guilty, he was sentenced to three years probation and required to undergo sex-offender treatment. Cañon City Counseling, his treatment provider, and his probation officer barred him from having contact with or even discussing his grandchildren, according to court records. He had to take down their photos.

After he answered a telephone call from his daughter, who sought his counsel over her pregnancy, he was warned that the discussion about her fetus put him in violation of his treatment standard, court records allege.

“If it wouldn’t have been for the wife I got, it would have cost me my life,” Callies said recently of the conditions he faced during his probation. “It cost me enough emotionally.”

Christopher N. Osher is a reporter on the investigation team at The Denver Post who has covered law enforcement, judicial and regulatory issues for the news organization. He also has reported from war zones in Africa.

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